Chapter Three

Acquisition of Right
or Title of Office

A. In General
1. Modes of Commencing official relations
The manner of selecting persons for public office is generally by either
:
a. Election
b. Appointment

2. Meaning of Appointment
a. It is an act of designation by the executive officer, board, or body to whom that
power has been delegated, of the individual who is to exercises the powers and
functions of a given office.
b. It is equivalent to filling a vacancy in an office.
c. It is the nomination or designation of an individual to an office.

3. Where appointing power resides

a. Inherently belongs to the people
b. Entrusted to designated elected and appointed public officials

4. Appointing power generally regarded as an executive function

a. Where power exercised by executive department
b. Where power exercised by other departments

5. Power to appoint discretionary

a. Power of court to review appointments
b. Power of Civil Service Commission to revoke appointment

6. Power may be absolute or conditional

a. absolute where the choice of the appointing authority is conclusive if it falls
upon an eligible person. No further consent or approval is necessary.
b. conditional where assent or approval by some other officer or body, such as
the Commission on Appointments, is necessary to complete the appointment.

7. Restrictions on the power to appoint

a. Generally
Persons to be appointed to a public office should possess the required
qualifications and be selected solely with a view to the public welfare.
b. Under the Constitution
a. The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not, during his tenure, be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including governmentowned or controlled
Art. VII, Sec. 13 corporations and their subsidiaries
b. Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or
endanger public safety.
c. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
d. The Supreme Court shall have the following powers: Appoint all officials
and employees of the Judiciary in accordance with the Civil Service Law.
e. The Members of the Supreme Court and judges of the lower courts shall
be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.
f. The Constitutional Commissions shall appoint their officials and
employees in accordance with law.
g. The Members of the Civil Service Commision, Commission on Elections
and Commission on Audit shall be appointed without reappointment
xxx. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.
h. No candidate who has lost in any election shall, within one year
after
such election, be appointed to any office in the Government or any

Governmentowned or controlled corporations or in any of their

subsidiaries.
i. No elective official shall be eligible for appointment or designation
in
any capacity to any public office or position during his tenure.
Unless
otherwise allowed by law or by the primary functions of his
position, no
appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof,
including Governmentowned or controlled corporations or their
subsidiaries.
j. The officials and employees of the Office of the Ombudsman, other than
the Deputies, shall be appointed by the Ombudsman, according to
the
Civil Service Law.
k. The Ombudsman and his Deputies shall be appointed by the
President
from a list of at least six nominees prepared by the Judicial and
Bar
Council, and from a list of three nominees
for every vacancy thereafter.
Such appointments shall require no confirmation. All vacancies shall
be
c. Under filled
existing
laws
within
three months after they occur.

8. When Appointment deemed complete

a. Not subject to confirmation
b. Subject to confirmation
c. Approval by the Civil Service Commission
d. Effects of completed appointment

9. Acceptance of appointment
a. Not necessary to completion or validity of appointment
b. Necessary to possession of office

10. Form of Acceptance

a. Express or when done verbally or in writing
b. Implied or when, without formal acceptance, the appointee enters upon exercise
of the duties and functions of an office

11. Obligation of elected or appointed individual to accept office

a. Generally not subject to compulsion
b. Obligation in the nature of a social duty

12. Necessary of written appointment

a. View that appointment should be evidenced by a writing
b. Contrary view

13. Revocation of appointment

a. Where appointment final and complete
b. Where appointee has assumed position
c. Where protestant more qualified than appointee

B. Appointments by the President

1. Power of appointment of the President
By the provision of Art. VII, Sec. 16 in the Constitution, the President is authorized
to
appoint, namely:
a. First:
heads of executive departments
ambassadors
other public ministers and consuls
officers of the armed forces from the rank of colonel or naval captain
other officers
i.regular members of Judicial and Bar Council
ii.chairman and commissioners of the Civil Service Commission
iii.chairman and commissioners of the Commission on Elections
iv.chairman and commissioners of the Commission on Audit
v.members of the regional consultative commission
b. Second:

All other officers appointments are not otherwise provided by law and
to be appointed to lower offices created by Congress

c. Third those whom the President may be authorized by law

heads of governmentowned or controlled corporations
undersecretaries
heads of bureaus and offices
other officials

d. Fourth
: appointments the Congress by law vests in the President alone
other officers lower in rank

2. Confirmation of appointments by Commission on Appointments

a. Required
first group above
b. Unnecessary
heads of bureaus
certain offices under different departments which are not called bureaus
example i.Securities and Exchange Commission
example ii.Insurance Commission
members of Supreme Court
judges of lower courts
Sandiganbayan
Tanodbayan (Ombudsman) ~ including deputies
Art. VII Sec. 16

chairman and members of the Commission on Human Rights

3. Appointment by other officials

Art. VII, Sec 16

Congress may vest power to appoint officers lower in rank to the followin

g:
a.
b.
c.
d.

heads of departments
agencies
commissions
boards

lower in rank does not include heads of bureaus and offices not specifically mention
ed
in the Constitution as among those to be appointed by President who are subordinates
of Cabinet members. By law, their appointments are vested in the President.
4. KInds of Presidential appointments
a. as to manner in which it is made
regular
made by Congress while in session; subject to confirmation by
the Commission on Appointments
ad interim
made while Congress is in recess
b. as to its nature
permanent
those which last until they are lawfully terminated
temporary acting
or
5. Ad interim appointments those which last until a permanent appointment is
issued
a.
These are appointments made by the President while Congress is in recess, thus,
the Commission on Appointments may only deliberate upon such appointments
when Congress goes into session
b.
The President is usually aided by the Commission on Appointments advice when
it comes to appointments. In case of ad interim appointments, however, the
President acts alone and the system of checks and balances vital to our system of
government is not in place
c. Ad interim appointments, however, are necessary due to the existence of
situations where there is a clear and present urgency caused by an impending
obstruction or paralysis of the function assigned to office to be filled if no
immediate appointment is made
d.
An ad interim appointment is permanent in nature and not a mere temporary or
acting appointment even if it subject to confirmation by the Commission on
appointments. However, it may be recalled or revoked by the President before
confirmation
6. Temporary or acting appointments
a.
Generally, the power to appoint vested in the President includes temporary or
acting appointments, unless otherwise provided by law.

b.
An acting appointment, being essentially temporary or provisional in character,
cannot be validly confirmed by the COmmission on Appointments because
confirmation presupposes a valid nomination or ad interim appointment.
c. A temporary appointment an acting appointment.
d. An unqualified person cannot be appointed even in an acting capacity
7. Designations
Is simply the mere imposition of new or additional duties upon an officer to be
performed by him in a special manner while he performs the function of his permane
nt
office.
8. Steps in the appointing process
a. Nomination It is the exclusive prerogative of the President upon which no
limitation may be imposed by Congress, except those resulting from the need
securing the concurrence of the Commission on Appointments and from the
exercises of the limited legislative power to prescribe the qualifications to a
given appointive office.
b. Confirmation
The power to confirm and reject certain appointments belongs to
Congress through the Commission on Appointments since it is a check on
the executive.
A confirmation cannot be reconsidered after the President has been
notified of the confirmation and has completed the appointment by
issuing a commission the appointee even if the rules of the confirming
body provide for reconsideration
c. Issuance of Commission
Commission is the written authority from a competent source given to
the officer as his warrant for exercise of the powers and duties of the
office. It is the the written evidence of the appointment
When a person is elected to office, his right as established as a result of
the election and does not depend upon the issuance of a commission.
Issuance of a commission to an elected officer is merely a ministerial act
and not a part of the act of appointment. Instead, the elected officer is
entitled to a certificate of election.

C. Appointments in the Civil Service

1. The Civil Service System
a. Scope all branches, subdivisions, instrumentalities and agencies of the
government including GOCCs with original charter. This covers the administrative
personnel of the entire government system, both national and local, including
the military.
b. Purpose to enable the national and local government and all its
instrumentalities and agencies to render more efficient services to the public by
enabling them to obtain efficient servants.
2. Classification of positions in the Civil Service
a. Career Service
Characteristics:
i.Entrance based on merit and fitness to be determined as far
practicable by competitive examinations or are based on highly
technical qualifications
ii.Security of tenure
iii.Opportunity for advancement to higher career positions

It includes:
i.Open career positions for appointments requiring prior
qualification in an appropriate examination
ii.Closed career positions which are scientific or highly technical in
nature.
iii.Positions in the Career Executive Service
iv.Career officers other than those in the Career Service who are
appointed by the President
v.Commissioned officers and enlisted men of the Armed Forces
vi.Personrel of governmentowned and controlled corporations
whether performing governmental or proprietary functions who
do not fall under noncareer services; and

vii.

Permanent laborer, whether skilled, semiskilled, or unskilled.

b. NonCareer Service
i.

Characteristics:
Entrance bases other than those of the usual test of merit and
fitness
Tenure which is limited to a period specified by law or
coterminous with that of the appointing authority or subject to
his pleasure or limited to the duration of a particular project

ii.

Includes:
Elective officials and their personal or confidential staffs.
Department heads and other officers of cabinet rank and their
staffs
Chairmen and members of commissions and boards with fixed
terms of office and their staffs
Contractual personnel
Emergency and seasonal personnel
Casual employees

3. Classes of positions in the career service

a. Three major levels:
Clerical, trades, crafts, and custodial service positions
Professional, technical, and scientific positions
Career Executive Service

b. Requirement of competitive examinations

Entrance to the first two levels are through competitive examinations
Entrance to the third level is prescribed by the Career Executive Service
Board
For promotion to a higher position in one or more related occupational
groups, no examination is required within the same level. However, the
candidate for promotion must have previously passed the examination
for the level.

4. Constitutional Classification

a.
Competitive Those appointments are made according to merit and fitness as
determined by competitive examinations.
b. Noncompetitive Those appointments do not take into account merit and
fitness as determined by competitive examinations. These include positions
which are policydetermining, primarily confidential, or highly technical in
nature.

5. Determination of merit and fitness by competitive examinations

General Rule
: The selection of any appointee to any government position shall be made
only according to merit and fitness to be determined, as far as practicable, by
competitive examinations to perform duties and assumes the responsibility of the
position, without regard to any other consideration such as sex, color, social status,
religion, or political affiliation.

6. Exemption from rule of noncompetitive positions

a. Through policy determining, primarily confidential and highly technical positions
are exempt from competitive examinations and and still enjoy the operation of
the principle: no office or employee in the Civil Service shall be removed or
suspended except for cause provided by law.

b. Whether an administrative position is primarily confidential, policy

determining,
or highly technical in the nature of the functions attached to the position.
c. Policy determining position
Its occupant is vested with the power of formulating policies for the
government or any of its agencies, subdivisions or instrumentalities.
d. Primarily confidential position

Its occupants enjoys more than the ordinary confidence i his aptitude o
f
the appointing power but bears primarily such as close intimacy which
insure freedom of intercourse without embarrassment of freedom from
misgiving of betrayal of personal trust on confidential matters of the
State. More than ordinary is required.

10

A position may be considered primarily confidential when the President,

upon recommendation of Civil Service Commissioner, has declared it to
be.

It is the nature of the position which finally determines whether a

position is primarily confidential.

Primarily confidential appointee is not subject to removal at the pleasur

e
of the appointing authority. Instead, termination of such an appointees
official relation can be justified on the ground of loss of confidence,
which involves no removal but merely the expiration of the term of
office.

e. Highly
technical position Its occupant is required to possess skills or training in
the supreme or superior degree.
7. Qualification standards in the Civil Service
1. These are the minimum requirements for a class of positions in terms of
education, training and experience, civil service eligibility, physical fitness, and
other qualities required for successful performance.
2. Use of Qualification Standards
As basis for civil service examinations for positions in the career service
As guides in the appointment and other personnel actions in the
adjudication of protested appointments
In determining training needs
As aid in the inspection and audit of the agencies personnel work
programs

8. Kinds of appointment in the career service

a. Permanent One which is issued to a person who meets all the requirements for
the position including the appropriate eligibility prescribed.
b. Temporary acting or One which is issued to a person who meets all the
requirements for the position to which he is being appointed except the
appropriate civil service eligibility.

9. Instances of temporary appointment

a. Where the appointee does not possess civil service eligibility

11

b.
Where the appointee has civil service eligibility but different from that which is
appropriate to the position for which he was appointed.
c. Where the appointment is made by the President to fill an executive office
during the absence or incapacity of the incumbent
d. Where the appointee has not passed any civil service examination
e. Where the new appointment is still subject to a condition and compliance has
not been made yet
f. Where a new incumbent has been appointed to fill the position of a regular
employee who has been illegally suspended or dismissed.
g. Where a person is designated as an officer in charge
h. Where the appointment is made at the pleasure of the appointing power

10. Separation of temporary employees

Can be terminated or withdrawn at the pleasure of the appointing power,
without notice of hearing, or a moments choice, and regardless of the grounds
or
reasons.
11. Qualification in an appropriate examination
a. Temporary appointment of noneligibles in the absence of eligibles
b. Appointment to a position requiring lower eligibility
c. Issuance/revocation of certificate of eligibility

12. Approval/recall of appointments by the Civil Service Commission

a. Appointments required to be approved:
General Rule: The Civil Service Commission must approve all
appointments, whether original or promotional, to positions in the civil
service and disapprove those where the appointees do not possess the
appropriate eligibility or required qualifications.
EXPN: Presidential appointments, members of the Armed Forces of the
Philippines, police forces, firemen, and jail guards.
b. Right of appointee to a hearing in case of disapproval
c. Effectivity of appointment until disapproval
d. Criterion to be employed
e. Extent of Commissions authority
f. Attestation of appointment
g. Keeping of records of all appointments
h. Recall of appointment
Rule VI, Sec. 20 Omnibus Implementing Regulations of the Revised Administrative Codei.
Grounds for recall :

12

Noncompliance with the procedures/criteria provided in the agencys

Merit Promotion Plan;
Failure to pass through the agencys Selection/Promotion Board;
Violation of the existing collective bargaining agreement between
management and employees relative to promotion; or
Violation of other existing civil service law, rules and regulation.

D. Vacancy
There is a vacancy when an office is empty and without a legally qualified incumbent appoin
ted
or elected to it with a lawful right to exercise it powers and perform its duties.
1. Classifications
a. original
when an office is created and no one has been appointed to fill it;
b. constructive when the incumbent has no legal right or claim to continue in
office and can be legally replaced by another functionary;
c. accidental
when the incumbent having died, resigned, or been removed, there
is no one in esse discharging the duties of the office
d. absolute
when the term of an incumbent having expired and the latter not
having held over, no successor is in being who is legally qualified to assume the
office
2. Causes of vacancy
a. Death, permanent disability, removal from office or resignation of the
incumbent.
b. Abandonment, expiration of term, conviction of a crime, impeachment
conviction, acceptance of incompatible office, creation of a new office, reaching
the age limit and recall. Failure of persons chosen for office to accept or qualify
for the office.
3. Filing of anticipated vacancies
a. Generally appointment legal a prospective appointment to fill an anticipated
vacancy in a public office, made by the person or body which, as then
constituted, is empowered to fill the vacancy when it arises, is in the absence of
express law forbidding it, legal appointment, and vests title to the office in the
appointee.
b. Where appointment to take effect after expiration of appointing power but the
appointing power cannot forestall the rights and prerogatives of their successors
by appointing successors to offices expiring after its power to appoint has itself
expired. It is also plain that an appointment thus made by anticipation has no
other basis than expediency and convenience.

13

E. Qualifying to Office
1. Qualification
The person appointed or elected to a public office is usually required by law,
before entering upon the performance of his duties to do some act by which he shall
signify his acceptance of the office and his undertaking to execute the trust confided in
him.
2. Oath of office for public officers and employees
a.
Oath is an outward pledge whereby one formally calls upon God to witness to
the truth of what he says or to the fact that he sincerely intends to do what he
says
Constitution Article VII Section 5
Administrative Code of 1987
Local Government Code
3. Necessity of oath of office
a. When the public officer has satisfied the prerequisite of oath that his right to
enter into the position becomes plenary and complete.
b. Although the law usually requires the taking of an oath, it is not indispensable. It
is mere incident to the office and constitutes no part of the office itself.
c. The President, the Vice President, or the Acting President oath taking is
mandatory
d. Unless the law expressly requires more, it is sufficient that the oath be taken

4. Officers authorized to administer oath

a. Notaries public, members of the judiciary, clerks of court, the Secretary of either
House of the Congress, Secretaries of departments, bureau directors, registrars
of deeds, provincial governors and lieutenantgovernors, city mayors, and any
other officer in the service of the government whose appointment is vested in
the President.
b. Officers whose duties, as defined by law or regulation.
5. Public officers and employees required to give bonds
Those to whom are entrusted the collection and custody of public money, and
public ministerial officers whose actions may affects the rights and interests of
individuals.
14

6. Nature of public funds

a. Indemnity binding the officer to discharge the duties of his office
b. Obligation binding the sureties to make good the officer's default
c. Collateral security
7. Necessity of giving official bonds
a. Mere incident of office
b. Where time prescribed within which to give bond

F. De Facto
Officers
1. De facto
doctrine
Is the principle which holds that a person who, by the proper authority is
admitted and sworn into office is deemed to be
rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted therefrom, or his
admission thereto is
Springs
declared
void. from the fear of the chaos that would result from multiple and
repetitious suits challenging every action taken by every official whose claim to
office
could be open to question, and seeks to protect the public by insuring the
orderly
functioning of the government despite technical defect in title to office.
2. De facto
officer
is one who has the reputation of being the officer he assumed to be and
yet is
not good officer in point of law.
A person where the duties of the officer are exercised:
a. without a known appointment or election, but under such circumstance of
reputation or acquiescence as were
calculated to induce people, without inquiry
to submit to or invoke his action,
supposing him to be the officer he assumed to
be; or
b. under color of a known and valid appointment or election, but where the officer
has failed to conform to some precedent requirement or condition, such as
to
take an oath, give a bond, or the like; or
c. under the color of a known election or appointment, void because the
officer
was not eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in
its exercise, such
as ineligibility, want of power, or defect being unknown to the public; or
d. under color of an election or an appointment by or pursuant to a public,
15
unconstitutional law, before the same is adjudged to such.

Officer is one who derives his appointment from one having colorable
authority to
appoint if the office is an appointive office, and whose appointment is valid on its fac
e. jure
3. De
officer
is one who has the lawful right to the office in all respects, but
who has either
been ousted from it, or who has never actually taken possession of it.
4. Requirements to become officer de jure
a. He must possess the legal qualifications for the office in question;
b. He must be lawfully chosen to such office; and
c. He must have qualified himself to perform the duties of such office according to
the mode prescribed by the Constitution of law.
5. Usurper or intruder
is one who takes possession of the office and undertakes to act officially without
any color of right or authority, either actual or apparent.
6. Elements of
de facto
officership
a. There must be a
de jure
office
7. Liabilities
a be a color of right or general acquiescence by the public.
b. There of
must
de facto
c. There must
be actual physical possession of the office in good faith.
officer
a. It may be stated generally that a facto officer is held the same degree
of de
accountability for official acts as a jure officer and cannot escape
liability de
because he has not qualified for failure to file a bond.
b. While official acts of a
de facto
officer are valid and may be binding with
regard to third persons and the public the person so acting may
be liable for all
penalties imposed by law for usurping or unlawfully holding office, or for
exercising the functions thereof without lawful right
or without being qualified
according to law.
c. It is likewise the general rule that a public officer cannot excuse his
responsibility for crimes committed in his official capacity by asserting
that he
was an officer
de facto
.
d. A rightful incumbent of a public office may recover from a
facto officer the de
salary received by the latter during the time of his wrongful tenure, even though
he (the facto officer) occupied the office in good faith
16
and under the color of de
title.